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  1. #1

    Default What Penalty for Defending Not Serving by Rule of 5 and 25

    My question involves court procedures for the state of: Federal

    1. What is the penalty for defendant if it did not serve Plaintiff?

    Defendant should serve Plaintiff based on Rule 5, even it states in its motion: CERTIFICATE OF SERVICE
    This pleading was served on the Plaintiff in compliance with Rule 5 of the Federal Rules of Civil Procedure on xx.xx.xxxx.

    2. What is the penalty for defendant if it did not file and serve "A motion to substitute" because transfer of interest?

    Defendant sold its business after Plaintiff filed the current case. Defendant did not response the summon after received it 20 days, committed default. Defendant believed an entity (the "Buyer") would response to the suit. And Defendant responded to the Plaintiff's motion for default judgment once it learned the Buyer had failed to timely respond to the Suit. Without any evidence presented to court to show that Defendant did serve the Buyer (who, when, how and prove of Buyer severed and agreement of responsibility, liabilities, obligation), the judge denied my motion of default judgment!

  2. #2
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    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    If this is dealing with the same issue you brought up in this thread, please keep them together. https://www.expertlaw.com/forums/sho...d.php?t=243411

  3. #3
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    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Your post sorta drops us into the middle of a story without any background or context, so much of what you wrote doesn't make a lot of sense.


    Quote Quoting worldfg
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    1. What is the penalty for defendant if it did not serve Plaintiff?
    If the defendant didn't serve what on the plaintiff?


    Quote Quoting worldfg
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    2. What is the penalty for defendant if it did not file and serve "A motion to substitute" because transfer of interest?
    Motion to substitute what? Transfer of what interest?


    Quote Quoting worldfg
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    Defendant sold its business after Plaintiff filed the current case.
    So what? Most business entities continue to conduct business while involved in litigation, and that includes buying and selling business interests.

  4. #4

    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Per Rule 5 and 25, defendant needs to sever plaintiff when it filed motion and had new interest party (sold business)?

  5. #5
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    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Quote Quoting worldfg
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    Per Rule 5 and 25, defendant needs to sever plaintiff when it filed motion and had new interest party (sold business)?
    Despite your use of a question mark, this sentence is not a question. If you intended a question, I cannot discern what you intended to ask.

    If you're talking about the Federal Rules of Civil Procedure, you can read Rule 5 here and Rule 25 here.

    If you want more information, please answer the questions I asked and provide better/more context. Also keep in mind that telling us that someone "sold its business" is quite ambiguous.

  6. #6

    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Sorry about the unclear question. Defendant sold its business to third party two days after I filed the law suit. Defendant provided a declaration from its Associated General Counsel with statement "As part of the sale, the Buyer assumed the associated debts, obligations, and liabilities of Defendant’s related business". No contract or any other information provided. Defendant did not file any motion to the court, not inform Plaintiff. Defendant "believed the buyer would respond and defend the lawsuit". Defendant was trying to use this explanation as the reason to oppose the default judgment.

  7. #7
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    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Don't you have another thread on pretty much this exact same topic?

  8. #8

    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    The main topic of another thread was "relief based on Perjury committed by defendant"

  9. #9
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    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Quote Quoting worldfg
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    Sorry about the unclear question. Defendant sold its business to third party two days after I filed the law suit. Defendant provided a declaration from its Associated General Counsel with statement "As part of the sale, the Buyer assumed the associated debts, obligations, and liabilities of Defendant’s related business". No contract or any other information provided. Defendant did not file any motion to the court, not inform Plaintiff. Defendant "believed the buyer would respond and defend the lawsuit". Defendant was trying to use this explanation as the reason to oppose the default judgment.
    And the court is likely allow the defendant to answer and defend the lawsuit. Federal courts (and most state courts too) prefer to render judgments on the merits, not by default. If the defendant was properly served and had no credible explanation for not appearing the court would generally grant the default. But here the defendant does have an explanation for why he did not answer. It at least appears he didn't totally blow it off; he was expecting the buyer to answer instead. While that reliance was perhaps misplaced, the court isn't likely to punish him for it by depriving him his day in court.

  10. #10
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    Default Re: What Penalty for Defending Not Serving by Rule of 5 and 25

    Please refer back to my earlier comment that your post sorta drops us into the middle of a story without any background or context.


    Quote Quoting worldfg
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    Defendant sold its business to third party two days after I filed the law suit.
    I asked earlier, but you didn't answer, "so what?" Business entities generally continue to do business while involved in litigation, and doing business often includes buying and selling business interests. What does the defendant selling "its business" (whatever exactly that means) have to do with your lawsuit?


    Quote Quoting worldfg
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    Defendant provided a declaration from its Associated General Counsel with statement "As part of the sale, the Buyer assumed the associated debts, obligations, and liabilities of Defendant’s related business". No contract or any other information provided.
    Again, so what? In what context was this declaration filed?


    Quote Quoting worldfg
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    Defendant did not file any motion to the court
    What sort of motion do you (apparently) think should have been filed and why?


    Quote Quoting worldfg
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    not inform Plaintiff. Defendant "believed the buyer would respond and defend the lawsuit".
    Huh, and so what?


    Quote Quoting worldfg
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    Defendant was trying to use this explanation as the reason to oppose the default judgment.
    Ok, and...???

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